: Tampering in Brisbane
Darwin Launch of Tampering with Asylum
Colin McDonald QC
Museums and Art Galleries of the Northern Territory
17 December 2003
Launch of Tampering with Asylum, University of Queensland
Press, ISBN 0702234168
1. Let me start with an anecdote which, in light hearted terms,
tells us what a mess immigration policy is in relating to refugee
and asylum seeker issues.
2. I was delivering an invitation to tonight’s launch to
Father Tim Brennan MSC at the Dioscesan headquarters in Darwin.
I greeted Father Tim and handed him the invitation. He read the
invitation, smiled and relayed the effect of a recent telephone
conversation he had with Gibson Farmer the President of the Milikapiti
Council at Snake Bay, Melville Island. Gibson Farmer was one of
the three people who met some of the 14 Turkish Kurds on the beach
at Melville Island on 4 November 2003. Tim made the telephone call
and Gibson Farmer answered. The conversation went roughly like this:
“Good morning Gibson. Am I making an international call
“Good morning Father Tim. Not Today. Thanks to the Senator,
Melville Island is back as part of Australia”.
3. The reference, of course was to the bungled effort to purportedly
excise Melville Island on 4 November, 2003 from Australia allegedly
in the urgent need to protect Australians from people smugglers.
The crazy excision exercise comes as the latest in a line of over-reactions
to the arrival in Australia’s north of boat people. In this
case just 14 boat people.
4. Asylum seeker and border protection issues have been headline
news for over a decade. We in Australia have been flooded in recent
years with the rhetoric of an exaggerated threat to Australia’s
security by asylum seekers arriving by boat.
5. We, the people of Darwin, are no strangers to the phenomenon
of desperate people arriving on our shores and in our territorial
waters in small numbers seeking asylum in the wake of war, social
collapse and political or other oppression. The Vietnamese were
the first on our shores in the 1970’s. We took them in. Since
the arrival of the Vietnamese there have been essentially three
small waves of boat arrivals. The next arrivals were the Cambodians
fleeing understandably, the return of Pol Pot in the late 1980’s
to early 1990’s. Then, there was the Christian Chinese women
who were fleeing the religious and the physical, biological persecution
of forced sterilisation under the one child policy in China. More
recently we have seen Iraqis, Afghans and Iranians also fleeing
their ravaged countries at a time when, objectively, their countries
can be described as oppressive and persecutory of particular sections
of their citizens, especially women.
6. In August to September, 2001 the MV Tampa’s Captain Arne
Rinnan picked up a despairing human cargo of asylum seeks in international
waters north of Australia. He sought permission to dock and unload
the asylum seekers at the nearest point of land, Christmas Island.
What followed was a dramatic, brutal and now demonstrably flawed
exercise of government, executive power.
7. Lives were put at risk. The law was twisted. The military was
brought in. The press was muzzled. Intelligence services were misused.
Australia defied the United Nations. We needlessly antagonised Indonesia.
We hastily bribed poverty stricken Pacific nations in search of
a harsh and rash solution. The result was a dark election victory
for the Howard Government.
8. We now know that victory and the use of the Tampa incident was
based on so much deceit, political spin and expediency. There has
been a decay in both public language and public morality over the
issue of asylum seekers arriving by boat in Australia. That is why
the book “Tampering with Asylum” by Father Frank Brennan
is so timely.
9. It was my fortune to attend Frank Brennan’s Sydney launch
at Gleebooks on 26 November 2003 and to witness the huge turn out
of people from so many different parts of the New South Wales community.
The evening was stimulating, thought provoking and a great success.
10. Frank’s speech covered many policy issues, some human
and moving anecdotes and wise observations. I noted this time not
just Frank’s usual eloquence, but also passion and deep frustration
with the tragic quagmire that Australian Government policy has become
in relation to migration and the issue of asylum seekers. I relayed
the news of this opening to Bob Collins. Bob Collins is the Territory’s
most experienced and successful politician. At Bob’s haunt,
the Cyclone Café in Parap we decided to form a “coalition
of the willing” - willing that is to launch Frank’s
11. At his Sydney launch, Frank also addressed the recent arrival
of the 14 Turkish Kurds at Melville Island and the Northern Territory
Supreme Court habeas corpus proceedings on 6 and 7 November, 2003
in Darwin in which I was privileged to appear on behalf of Suzan
Cox in her capacity as the Director of the Northern Territory Legal
Aid Service against the Minister for Immigration. There was a sense
of disbelief in the Sydney audience as Frank referred to the towing
out to sea of people who had actually landed on shore and the flurry
of Government gazetting on Melbourne Cup Day making Melville Island
no longer part of Australia for migration purposes.
12. In that extraordinary case it became clear that on 4 November,
2003 the Government excised Melville Island and thousands of other
islands across the entire north and north east and north west of
Australia purportedly retrospectively in response to the landing
of just 14 Turkish Kurds at Snake Bay. What was the problem?
13. In the case in the NT Supreme Court, the Solicitor General
for the Commonwealth declined to state where the boat was being
towed. The case was lost. We assumed it was being towed to one of
the Pacific Solution countries. But if the Tampa asylum seekers’
litigation was a dark victory for the Government, then the towing
out to sea and the dumping of the Minasa Bone in Indonesia was an
even darker victory.
14. The judge presiding over the proceedings in Darwin was Justice
Dean Mildren. In his judgment Justice Mildren found:
- that Suzan Cox and Legal Aid solicitors had been “deliberately
given the run around” by various DIMEA officers
- attempts were made to prevent the media from coming anywhere
near the vessel by the imposition of a 3,000 metre exclusion zone
over Melville Island and closing the airport to prevent the media
as well as others from getting to the island
- His Honour concluded “Behaviour of this kind usually
implies there is something to hide”
- That the information provided by the only witness put forward
by the Minister for Immigration, Mr Jonathon Eyers, was minimal:
Mr Eyers was asked specifically why Ms Cox’s request to
seek access to those on board the vessel was not acceded to. He
replied that it was normal procedure that unless a person requested
legal assistance it is not provided. He said that he did not know
whether any of the persons concerned had asked for legal assistance
or not and did not know whether any of them had asked for asylum.
Even allowing for the urgency under which this affidavit was sworn
I found it incredible that the 1st and 3rd defendants’ principal
witness could not answer these questions.
15. Later, after the case was lost, we found out the disturbing
news that was not revealed in the hearing:
- the boat was dumped in Indonesia, a non Refugee Convention
Country, a fact which if known would have been a powerful consideration
for the grant of habeas corpus
- that the men had made applications across language barriers
seeking asylum in the company of Commonwealth officers. These
applications were ignored
- the four Indonesian couriers were not even arrested even though
the whole exercise of excising Melville Island and all the other
islands was to tackle people smugglers
- in a letter dated 13 November 2003 to the Minister for Immigration
from the Deputy Secretary of DIMEA and the Chair of the People
Smuggling Task Force, Ed Killesteyn, the real truth came out:
In the letter, inter alia, said:
As you know the Government acted to excise Melville Island from
the Migration Zone so as to prevent the people on board the vessel
from making a valid protection visa application in Australia.
Once Melville Island was excised effective from the beginning
of the day, the vessel arrived and there was no possible way for
the people to make a valid application for a protection visa under
the Migration Act and Regulations.
16. Justice Mildren’s concerns that the Minister and the
Government had something to hide were entirely justified.
17. Public language has decayed, transparency and honesty shredded
in the politically driven rhetoric over those who arrive by boat
seeking asylum. If you came by aircraft, it is, of course ok.
18. If you come by air and have money, that’s different.
Readers of the NT News of Monday, 8 December 2003 had their week
sweetened by a sub-heading “Overseas sextuplets fly over for
Wiggles”. An accompanying photo of the happy, jumping sextuplets
Dominick, Davis, Deidree, Danny, Dylon and Douglas Tjokrosotio captures
their happy arrival in Melbourne from Jakarta. They were in Melbourne
for a sell out Wiggles concert. Their obviously loving and indulgent
father declined to say how much the trip was costing. Money, pleasure
and entertainment brought the sextuplets by aircraft to their fanfare
welcome to Australia. However, if they had been poor, fleeing persecution
with despairing parents and arrived by boat they would be treated
almost as pariahs.
19. So, in the turbulent seas of political exploitation of complex
national and international humanitarian problems, it is refreshing
to find an honest broker.
20. Frank Brennan’s book is measured and full of insight.
He explores with an even hand the policy and humanitarian issues
that have led to the disgraceful state of immigration policy concerning
asylum seekers and Australia’s retreat from decency.
21. Australians will always be concerned most with the issues that
affect ordinary Australians: health, education, housing, choices
for our children to get a start and get ahead. But, we as a nation
have also always been, and have until recent years, projected ourselves
as being decent neighbours in our region and decent international
citizens. That can no longer be said to be true as Frank Brennan’s
22. The politics of fear and political wedging has led to the most
disturbing developments in our country, so disgraceful that they
can be said to be un- Australian:
- the mandatory detention of all asylum seekers including children
- the use of razor wire, tear gas and batons in detention centres
- the Pacific solution turning completely sour with asylum seekers
now near death from hunger strikes
- children sewing their lips
- adults and children committing suicide in detention
- an increasing sense of unease across the country.
23. Frank Brennan’s book should be read by all those who
want to see beyond the political spin and by those who are concerned
not just with Australia’s retreat from the Refugee Convention,
but also those who are concerned with the now daily accounts of
horror that are emerging from the gulags at Woomera, Baxter and
Port Hedland to say nothing of our compounds in Nauru and Manus
24. As one who can look back to the days when there wasn’t
this mess, I can say it began with mandatory detention. Things got
worse with the effective exclusion of the Courts from being able
to review cases of injustice for asylum seekers. The trifecta of
injustice was made complete with the introduction of temporary protection
25. Frank’s book is a sober and compelling examination of
how, in a balanced way, public policy can be restored to a level
of some decency.
26. In his preface at page xiii of the book, Frank recounts this
Walking through Sydney Airport one day, Walid, one of the Palestinian
asylum seekers whom I had known in Woomera, greeted me. At first
I did not recognise him. He had been granted a temporary protection
visa (TPV). He was wearing new clothes and his bearing was confident
and graceful. In Woomera, in the desert dust, detainess do not
have or wear good clothes. They are often downcast and despairing.
I then met Geoff Clark, Chairman of ATSIC, and asked if he would
have time to meet Walid. He greeted him with the words, ‘You
and I have the same minister.’ Philip Ruddock has been Minister
for Immigration and Minister for Indigenous Affairs. At that moment,
I realised that he was minister for everyone who is ‘other’
in contemporary Australia. Clark explained to Walid, ‘I
have told our minister, “I don’t mind you making tough
laws for boat people provided you make them retrospective.”
Then pointing at me, he said, ‘This is the trouble in this
country. This mob, they’re all boat people. But now they
think they can run the show.
27. If the wise head counters in the Labor Party were listening
at the moment, they would take heed of what is set out in this welcome
book. There is a shift taking place in mainstream Australia. Australians
are uncomfortable with being lied to.
28. When I read Frank’s book and I reflected for a moment
and considered the disasters of the Tampa and the Minasa Bone and
the daily atrocities in our detention centres I was reminded of
the words of Victor Hugo: “There is one thing stronger than
all the armies of the world, and that is an idea whose time has
29. In Darwin tonight, in this Australia’s northern capital
and in the most affected part of Australia in relation to the asylum
seeker issue, I say that all the strength of the Howards, Ruddocks
and Vanstones of this world cannot suppress an idea whose time has
come. That idea is, quarantine and security clearance aside: No
child, no child in Australia should be kept in immigration detention.
30. It gives me great pleasure to introduce and welcome Father
Frank Brennan SJ and to launch his excellent book “Tampering
31. Which brings me to the dilemma of what one does to officially
launch a book. We are used at the launching of ships to see Prime
Ministers’ and Defence Ministers’ wives plunging a bottle
of bubbly against the hull of the new vessel before it slides down
the slipway. But what about the launching of a book?
32. Fortunately, this is the Museum and Art Galley of the Northern
Territory. And this Museum has a ghost, the ghost of its inspired
and colourful founding director, Doctor Colin Jack-Hinton. I feel
his presence sometimes as I walk through the galleries and halls
of this place. Doctor Colin was an Indonesionist, familiar with
that great country’s magnificent diversity of art, culture
and aesthetics. At the opening of art exhibitions in Indonesia and
Indonesian cultural events in this Museum, Doctor Colin borrowed
from the rich traditions of Indonesia and employed a Javanese or
Balinese Gamelan Orchestra Gong. So there is a Javanese Gamelan
gong here tonight and the ghost of ‘Pak Jengot’ is with
33. So it is with great pleasure and in a rich tradition that we
launch this book “Tampering with Asylum” and give Frank
Brennan the gong.
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